Vehicle taking, temporarily or permanently
Aggravated Felony (AF)
To surely avoid an AF as obstruction of justice or theft, get 364 days or less on each count, but see Advice. See § N.4 Sentence.
If 1 yr cannot be avoided or could occur on a PV, see Advice and plead to 10851 “accessory after the fact” rather than a taking.
Crime Involving Moral Turpitude (CIMT)
Never a CIMT regardless of info in the ROC.1CIMT: The minimum conduct to commit § 10851 is a taking with intent to temporarily deprive, and that conduct is not a CIMT. Because § 10851 is not divisible under the categorical approach, no conviction of 10851 is a CIMT for any immigration purpose, regardless of information in the record. Almanza-Arenas v. Lynch, 815 F.3d 469 (9th Cir. 2016) (en banc).
This is not changed by BIA precedent that expands the definition of theft as a CIMT to include not only permanently, but “substantially” depriving the person of ownership benefits, by depriving the owner for a long time. The BIA acknowledges that joyriding (which includes depriving property for a few hours or days and is covered by § 10851) does not meet that new definition. Matter of Diaz-Lizarraga, 26 I&N Dec. 847, 850-51and n. 10 (BIA 2016); Matter of Obeya, 26 I&N Dec. 856 (BIA 2016). (Note that the new standard articulated in Diaz-Lizarraga and Obeya does not apply retroactively to convictions received before their publication date, which was November 16, 2016. Garcia-Martinez v. Sessions, 886 F.3d 1291, 1292 (9th Cir. 2018).)
To give D extra protection against an adjudicator’s mistake, try to make a specific plea to intent to deprive temporarily. But if that is not possible, note that many adjudicators know that 10851 is not a CIMT.
Other Removal Grounds
No other removal ground.
Advice and Comments
AF. See citations and further discussion here.210851 as an AF. This section provides citations and further discussion, and will be of most use to advocates who need to make the argument that a § 10851 conviction with a year imposed is not an AF under any definition, or who just want to understand the underlying issues. Some of these issues involve the categorical approach, which is discussed further at n. 4, above.
Bottom line: The definition of AF includes “theft” (taking property without consent) and “obstruction of justice” (interference with certain kinds of government action), in each case only if a sentence of a year or more is imposed. See 8 USC § 1101(a)(43)(G), (S). A taking under § 10851 would meet the definition of “theft” and be an AF with a sentence of a year or more. (Remember that this is regardless of whether the intent is to deprive temporarily or permanently; temporary intent only is relevant to CIMT determinations, not to an AF.)
However, § 10851 also criminalizes accessory after the fact to the theft. Accessory after the fact is not “theft,” and the Ninth Circuit further held that accessory after the fact under Pen C 32 is not “obstruction of justice.” See Valenzuela Gallardo v. Barr, 968 F.3d 1053 (9th Cir. 2020) (petition for rehearing denied) (“Valenzuela Gallardo II”), discussed below. Barring a Supreme Court opinion, this appears to be as secure a ruling as we get within the Ninth Circuit. So, a specific plea to accessory after the fact is not an AF in the Ninth Circuit, even if a sentence of a year or more was imposed. There still are two risks with 10851 and a sentence of a year or more:
– First, within the Ninth Circuit, while § 10851 ought to be found indivisible between theft and accessory, it appears that an en banc decision will be required to make that holding. Until then, § 10851 will be considered divisible between theft and accessory in the Ninth Circuit. To avoid an aggravated felony in the Ninth Circuit if a sentence of a year or more is imposed, it is imperative to plead specifically to accessory. Immigration advocates should preserve the divisibility issue for appeal (to the Ninth Circuit en banc) and at the same time investigate other defenses, including possible post-conviction relief. See next section discussing theft versus accessory.
– Second, if the client travels, or is detained and transferred, out of the Ninth Circuit and immigration proceedings arise there, any conviction of 10851 with a year or more imposed, including a specific plea to accessory, might be held an AF. The BIA asserts that accessory after the fact does meet the definition of obstruction, and some circuit courts of appeals may decide to adopt the same view.
Section 10851 includes accessory after the fact; divisibility issue. This discussion addresses what happens within the Ninth Circuit if a § 10851 conviction has a sentence of a year or more imposed. In 2007 the Ninth Circuit en banc decided United States v. Vidal, 504 F.3d 1072, (9th Cir. 2007) (en banc), on remand after Duenas-Alvarez. Vidal involved a conviction of § 10851 where a year or more had been imposed. In a split decision, the Ninth Circuit en banc found that the term “an accessory” in § 10851 refers to an accessory after the fact, like Pen C § 32. Id. at 1077-86, The court found that the inclusion of “accessory” in the text of § 10851 fulfills the “realistic probability of prosecution” requirement set out in Duenas-Alvarez. Id. at 1082. The court held that accessory under § 10851 does not come within the definition of “theft,” which was the only AF category that the government had charged (i.e., it had not charged that 10851 also is an AF as obstruction of justice). It reviewed the record of conviction under the modified categorical approach (i.e., treated § 10851 as a divisible offense) and found that the record was inconclusive. Id. at 1086-90.
Ten years later, in United States v Arriaga-Pinon, 852 F.3d 1195 (9th Cir 2017) the court considered a very similar case: a § 10851 conviction with a sentence of a year or more, that was charged as an AF only as theft, and that involved a record of conviction similar to the one in Vidal. The court followed Vidal and held that 10851 is divisible between theft and accessory, and that the record in the case was inconclusive. But it noted that, based on Supreme Court precedent subsequent to Vidal, such as Mathis, § 10851 ought to be found indivisible between theft and accessory. ,. However, the majority of the three-judge panel concluded they did not have authority to overrule Vidal and find that § 10851 is indivisible. See Arriaga-Pinon, concurrence by Chief Judge Thomas. Therefore, it appears that it will take an en banc or a Supreme Court ruling to get a finding that §10851 is indivisible (not divisible) between theft and accessory. If sometime in the future an en banc panel finds that § 10851 is indivisible between theft and accessory, then no conviction of § 10851 will be an AF in the Ninth Circuit, even if a year or more is imposed, and even if the specific plea was to theft. However, getting an en banc opinion could take a long time, and for now anything other than a specific plea to accessory is dangerous. At this time:
1. Any person who pled specifically to 10851 accessory and got a year or more does not have an aggravated felony within the Ninth Circuit. See Valenzuela Gallardo II (accessory under PC 32 is not obstruction); Arriaga Pinon (same for VC 10851).
2 .Any person who pled specifically to theft and got a year or more has an aggravated felony within the Ninth Circuit (although immigration advocates should appeal this on the grounds that 10851 actually is indivisible, so that no conviction is an AF in the Ninth Circuit.). See Arriaga-Pinon, Vidal.
Any person convicted of a divisible statute who has an inconclusive record of conviction is subject to the rules in Pereida v. Wilkinson, 141 S.Ct. 754 (2021) (although immigration advocates should appeal any adverse hearing, on the grounds that 10851 is indivisible.) An example of an inconclusive record would be that the person pled to a charge tracking the language of 10851, including both theft and accessory, and no other permissible evidence shows of which conduct the person was convicted. Or, if the court lost or destroyed the conviction records, this is an inconclusive record. Pereida held that if a record under a divisible statute is inconclusive, then an applicant for relief cannot meet their burden of proving they are eligible and they will be denied the relief. Likewise, ICE cannot meet its burden of proving that a conviction under a divisible statute makes a person deportable. Note that Pereida also suggested that applicants for relief (and one assumes ICE) can use evidence from outside the record of conviction to prove the offense of conviction. See discussion of Pereida at H&S C § 11377, above, and Pereida Advisory at www.ilrc.org/crimes.
Both theft and obstruction of justice are AFs if a year or more is imposed. 8 USC 1101(a)(43)(G), (S).
Best protection. Avoid a year or more (which includes added time on a PV) on any single 10851 count. Then it cannot be an AF, in any jurisdiction.
Felony probation: If the client gets felony probation with 364 or less on a 10851, plead to accessory. Write in the file — and warn the client that in case of a PV, they must tell their defender to check the file — that they must avoid a dispo that results in a year or more total on a single count of 10851. For example, they could take more time on a new offense to avoid more time added to the 10851. Avoiding a year will protect client in case they are taken outside the Ninth Circuit at some point.
Next best protection: If a year will be imposed (or could be imposed in future with a PV):
Plead specifically to 10851 accessory after the fact, not theft. This is critical. It is settled within the Ninth Circuit that accessory (PC 32) is not obstruction of justice and therefore is not an AF, even if a year or more is imposed. Valenzuela Gallardo II, petition for rehearing denied. 10851 accessory will be treated the same. (But see below for if client is taken outside the Ninth.)
A specific plea ot accessory is needed because at this time the Ninth Circuit treats 10851 as “divisible” between theft and accessory. A vague plea might protect an LPR contesting deportability, but will not protect someone applying for relief. Pereida. However, immigration advocates should preserve the divisibility issue for appeal, and investigate PCR during the process. VC 10851 ought to be held indivisible between theft and accessory, but this will require a new en banc decision in order to overturn prior contrary precedent. See discussion in endnote.
Warn client that even with the accessory plea, with a year or more imposed they are at great risk if they travel outside the Ninth. If the client is removable for some other reason (undocumented, other conviction), ICE may detain them and transfer them outside the Ninth. The BIA holds that accessory is an AF as obstruction if a year or more is imposed. The Ninth Circuit does not follow this, but other circuit courts of appeals may, and their rule will control if the person is in proceedings there.